Citation Nr: 0019024
Decision Date: 07/20/00 Archive Date: 07/25/00
DOCKET NO. 97-22 231 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to a rating in excess of 30 percent for service-
connected post-traumatic stress disorder (PTSD) from November
30, 1994 to July 1, 1996.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
G. A. Wasik, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1960 to
November 1963 and from March 1964 to December 1966.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO). In March 1996, the RO
granted service connection for PTSD and evaluated the
disability as 30 percent disabling effective from December
18, 1994. The veteran perfected an appeal with the initial
disability evaluation assigned for the PTSD. In July 1998,
the RO granted an increased rating to 100 percent for the
PTSD which was effective from July 2, 1996. The RO also
determined that the March 1996 rating decision and subsequent
decisions were clearly and unmistakably in error in failing
to service connect PTSD from November 30, 1994. The veteran
has reported he is not satisfied with the 30 percent
disability evaluation assigned for his PTSD from November 30,
1994 until July 1, 1996. This is the issue currently before
the Board.
FINDING OF FACT
The entire competent and probative evidence of record shows
that PTSD resulted in no more than definite (moderately
large) social and industrial impairment from November 30,
1994 to July 1, 1996.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for PTSD,
from November 30, 1994 to July 1, 1996, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
An August 1992 VA general medical examination includes a
diagnosis of PTSD by history which was asymptomatic at the
time of the examination. No objective mental symptomatology
was reported. It was noted that the veteran reported he had
been hospitalized for two months around 1985 for stress
syndrome. The veteran reported that he did not have any
problems since then because a doctor told him he should meet
all problems head-on.
Numerous VA outpatient treatment records reveal the veteran
was attending a PTSD support group beginning November 16,
1994. PTSD was included as a diagnosis/assessment on all the
records.
A VA clinical record dated November 30, 1994 included a
diagnosis/assessment of PTSD. It was noted on the record
that the veteran no longer had nightmares of Vietnam but did
have frequent intrusive thoughts of Vietnam during the day.
The veteran reported he was quick to anger and preferred to
be alone. He further reported that he had problems with
alcohol at times.
In December 1994, it was noted the veteran was renewing a
relationship with an old girlfriend.
A VA Agent Orange examination was conducted in January 1995.
PTSD was included as an initial impression. The veteran
reported PTSD had been present for 10 years and he had been
in counseling for it. He was not taking any medication.
On a clinical record dated in January 1995, it was noted the
veteran was not sleeping well and was not taking any
medication.
A VA PTSD examination was conducted in February 1995. The
veteran reported he was attending PTSD groups once per week
and was also taking Thorazine at night to improve his sleep
but the medicine did not seem to be helping much. The
veteran stated he had nightmares of Vietnam until he decided
not to. At the time of the examination, he denied
experiencing nightmares of Vietnam. He reported that during
the day certain sights or sounds could trigger a sudden
recollection of events in Vietnam. These were described as
very brief and lasting no more than minutes. The veteran had
been living with his current fiancée for ten years. He did
not feel comfortable around other people. He did not go
shopping. He did not go out with his fiancée to restaurants.
When he had to go out in a public place, he always sat with
his back to a wall and remained watchful of others. He
reported he was quite easily startled by someone coming up to
him unexpectedly or when seeing something out of the corner
of his eye. He stated he was not startled by loud noises.
On an average day, he spent time talking and visiting with
some of his mechanic friends in the small community where he
lived. When asked about the future, he expressed no
fantasies about what his future could be and stated that he
had none. He reported he had some difficulty falling asleep
and staying asleep. He indicated he would often wake up at
night, feeling either angry or frightened and sometimes in
the morning he felt like crying. He reported he had feelings
of intense anger in which he would walk away and isolate
himself. He did not destroy other property and did not
attack other people. He reported that the outbursts of rage
had subsided since he stopped drinking. He reported some
suicidal ideation in the past but not at the time of the
examination. When asked to describe a current day, he
reported he "piddles around", talking to his mechanic
friends or watching light television. He avoided heavy
dramas and did not like war movies because they were
unrealistic. There was no family history of mental illness.
He reported he did not like the other kids at school and quit
after the 10th grade. He stated that he ran a body shop
fifteen years prior but had to give it up because he had
difficulty with concentration, was getting frustrated, and
had difficulty with the customers. He had been married three
times. With the exception of an event ten years prior when
he was violent and spent two weeks in jail and two more weeks
in a hospital, he did not have any difficulties with the law.
Objective examination revealed the veteran became somewhat
emotionally distressed when asked about what might have
happened in Vietnam. Affect was somewhat restricted. He
could relate his story in a clear and coherent fashion
without any evidence of disorder in the progression of his
thoughts. Grooming was casual but appropriate. He made two
careless errors when performing serial seven substractions.
He remembered only two of three items after distracted delay.
He was unable to correctly interpret a proverb and gave a low
level of abstraction to similarities. The Axis I diagnoses
were alcohol dependence in early remission and a provisional
diagnosis of PTSD. The Axis II diagnosis was personality
disorder, not otherwise specified with prominent dependency
traits and passive aggressive traits. The examiner noted the
veteran probably met the criteria for PTSD in the past but
only had residuals at the time of the examination. It was
noted there was a lack of information regarding original
trauma and therefor the PTSD diagnosis was provisional. A
Global Assessment of Functioning (GAF) scale score of 65 was
assigned.
A March 1995 VA clinical record includes diagnoses of PTSD
and adjustment reaction. It was noted the veteran was
sleeping much better with Thorazine but still would wake up
early. It was also noted his girlfriend kicked him out the
prior week.
In May 1995, it was reported that the veteran was going to
the mountains because dealing with people was too much for
him.
In August 1995, the veteran stated that he had restless sleep
and that he tore up the bed. It was noted he had new stress
as a result of his claim for service connection for PTSD
being denied. A subsequent clinical record dated in August
1995 notes the veteran was fed up with people and had moved
to the mountains. He reported he slept some nights on
Thorazine but not restfully. He was angry about his claim
being denied.
In September 1995, it was noted that the veteran was upset
about his financial condition. He reported increasing
difficulty dealing with customers in his auto body shop and
felt that continuing the business was not an option. The
veteran was also upset about the denial of service connection
for PTSD. It was noted that he did not feel strong enough to
write a requested stressor letter. He was isolating himself.
It was also reported he was feeling a great deal of anxiety
and anger.
In October 1995, it was reported the veteran was upset over
the breakup with his long time live-in girlfriend. They had
been together off and on for eight years. The veteran felt
as if he did not want to maintain his auto repair shop
because he didn't want to deal with the public. The veteran
had difficulty discussing an in-service stressor involving an
Indian (Montangard) tribe which was wiped out by the Viet
Cong. A subsequent record dated in October 1995 noted he had
felt good for a few weeks but the last few days he felt down,
angry and negative. He had been unable to write a stressor
letter about some of his Vietnam experiences. After talking
about the incident, the veteran was able to dictate to the
social worker his experiences.
In November 1995, it was noted the veteran had been feeling
depressed with a lack of energy and motivation. He was
considering a job which would keep him isolated for months at
a time. He planned on attending a family reunion. A
separate clinical record dated in November 1995 included the
notation that the veteran had a history of PTSD, social
isolation and nightmares. The veteran did not have suicidal
or homicidal ideation. It was reported that Thorazine was
helpful for the nightmares.
On a clinical record dated in January 1996, it was noted the
veteran was back together with his girlfriend. Both he and
his girlfriend had been sober since November 1995. The
veteran reported that his PTSD symptoms seemed worse since he
stopped drinking. He was unable to go to sleep until early
in the morning and then only slept for a few hours. He felt
as if he was more quick to anger, was bothered about
intrusive thoughts of Vietnam and was hypervigilent with
paranoid thoughts. He denied suicidal or homicidal ideation.
On a subsequent record dated in January 1996, it was noted
the veteran was feeling good but was aware that that could
change at any time. He reported he was tired of being on an
emotional roller coaster. He did not have any suicidal
ideation but realized he was constantly putting himself in
dangerous situations and really didn't care if he lived or
died. It was noted the veteran liked to volunteer with the
Disabled American Veterans and felt surprised he liked
volunteer work since he didn't like people. He reported he
was going to apply for a specialized in-patient treatment
program for PTSD.
In March 1996, the veteran reported he was anxious about his
referral to an in-patient PTSD program. He reported he
wanted to deal with his PTSD but had difficulties discussing
incidents in Vietnam. He stated he was not sleeping well due
to nightmares he could not remember. He had no appetite and
was often teary and sad. He found it difficult to be around
other people. The veteran had closed his auto body shop
because he was unable to deal with the stress of working with
the public. A subsequent record dated in March 1996 included
the notation that the veteran had a history of PTSD and was
reporting that Thorazine was not helpful. He had insomnia,
social isolation and felt agitation. The veteran denied
suicidal or homicidal ideation. No delusions or
hallucinations were noted. Another clinical record dated in
March 1996 indicated the veteran was only able to sleep for a
few hours each night. This was noted to be a problem for the
preceding few months. He was feeling stressed, irritable and
overwhelmed. He was anxious to enter an in-patient treatment
program. It was noted the veteran was isolated except for
his girlfriend.
In April 1996, it was reported the veteran had a history of
PTSD. He was still anxious and had insomnia. He denied
suicidal or homicidal ideation. No delusions or
hallucinations were noted. A second clinical record dated in
April 1996 includes the notation the veteran was anxious
about beginning an in-patient PTSD program. He was concerned
about discussing his in-service stressors. He had recently
broken up with his girlfriend again as she was drinking.
In May 1996, the veteran reported he was anxious and
depressed. His admission to an in-patient PTSD program had
been delayed due to his mother's ill health. The veteran
reported he felt responsible for his elderly parents and was
saddened that they were in a nursing home in spite of the
fact that they had been rejecting him since he was a child.
He did not have any suicidal ideation.
In June 1996, the veteran reported he had been having
nightmares about his pending in-patient PTSD treatment. The
veteran reported he felt lonely after a relationship recently
ended but didn't want to start dating or getting into another
relationship. He was busy working with Disabled American
Veterans on various projects which helped to control his
depression. A separate record dated in June 1996 indicated
he remained depressed and had lost weight. He was not
interested in eating. He was only sleeping a couple of hours
per night. He remained anxious about entering an in-patient
PTSD program because he didn't like to be around people and
didn't like to be in groups.
The veteran was admitted to a VA facility on July 2, 1996 for
in-patient PTSD treatment.
By letter dated in April 1997, a social worker wrote the
veteran had been working with the Posttraumatic Stress
Disorder Clinical Team (PCT) since he was first assessed for
the program in November 1994. The social worker reported
that since the veteran had been working with the PCT staff,
his symptoms appeared to become more disabling, "most
notably since his completion of the Menlo Park inpatient PTSD
program."
Pertinent Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule),
38 C.F.R. Part 4 (1999). The percentage ratings contained in
the Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and the residual conditions in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In
determining the disability evaluation, the VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2
(1999), which require the evaluation of the complete medical
history of the veteran's condition.
In Fenderson v. West, 12 Vet. App. 119 (1999), it was held
that evidence to be considered in the appeal of an initial
assignment of a rating disability was not limited to that
reflecting the then current severity of the disorder.
Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that
decision, the Court also discussed the concept of the
"staging" of ratings, finding that, in cases where an
initially assigned disability evaluation has been disagreed
with, it was possible for a veteran to be awarded separate
percentage evaluations for separate periods based on the
facts found during the appeal period. Fenderson at 126-28.
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
evidence must preponderate against the claim. Alemany v.
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet.
App. at 54. When there is an approximate balance of positive
and negative evidence regarding the merits of an issue
material to the determination of the matter, such as in this
case, the benefit of the doubt in resolving each such issue
shall be given to the veteran. 38 U.S.C.A. § 5107(b). Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise the lower rating will be assigned.
38 C.F.R. § 4.7 (1999). All benefit of the doubt will be
resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999).
On November 7, 1996, the VA Schedule for Rating Disabilities
was amended with respect to certain psychiatric disorders,
including PTSD. 61 Fed. Reg. 52,695 (Oct. 8, 1996). See 38
C.F.R. § 4.132, Diagnostic Code 9411 (1995);
38 C.F.R. § 4.130, Diagnostic Code 9411 (1996-1999). The
purpose of this change was to update the portion of the
rating schedule addressing mental disorders, ensure that it
used current medical terminology and unambiguous criteria,
and reflected medical advances. 61 Fed. Reg. 52,695 (Oct. 8,
1996).
Where a law or regulation changes after the claim has been
filed or reopened before administrative or judicial process
has been concluded, the version most favorable to the
appellant applies unless Congress provided otherwise. Karnas
v. Derwinski, 1 Vet. App. 308, 311 (1991). In all cases, VA
must fully adjudicate the claim under both the old and the
new versions of the diagnostic criteria to determine the
extent to which each may be favorable to the appellant.
DeSousa v. Gober, 10 Vet. App. 461, 465 (1997). However, in
Rhodan v. West, 12 Vet. App. 55 (1998), the Court held that a
higher rating under the revised psychiatric rating criteria
could not be awarded prior to the effective date of the
change. See also VAOPGCPREC 11-97 (March 25, 1997). As the
issue on appeal revolves around the disability evaluation
assigned between November 30, 1994 and July 1, 1996, the
rating criteria in effect subsequent to November 7, 1996 are
not applicable.
Before November 7, 1996, VA regulations provided that the
severity of a psychiatric disorder was premised upon actual
symptomatology, as it affected social and industrial
adaptability. 38 C.F.R. § 4.130 (1996). Two of the most
important determinants were time lost from gainful employment
and decrease in work efficiency. Id.
Under the pre-November 7, 1996 rating criteria, a 30 percent
evaluation is warranted for PTSD where the ability to
establish or maintain effective or favorable relationships
with people is definitely impaired and where the reliability,
flexibility and efficiency levels are so reduced by reason of
psychoneurotic symptoms as to result in definite industrial
impairment. A 50 percent evaluation is warranted for PTSD
where the ability to establish or maintain effective or
favorable relationships with people is considerably impaired
and where the reliability, flexibility and efficiency levels
are so reduced by reason of psychoneurotic symptoms as to
result in considerable industrial impairment. A 70 percent
evaluation requires that the ability to establish and
maintain effective or favorable relationships with people be
severely impaired and that the psychoneurotic symptoms are of
such severity and persistence that there is severe impairment
in the ability to obtain or retain employment. 38 C.F.R. §
4.132, Code 9411 (1996).
Analysis
In general, an allegation of increased disability is
sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). When a veteran is awarded service connection for a
disability and subsequently appeals the initial assignment of
a rating for that disability, the claim continues to be well
grounded. Fenderson v. West, 12 Vet. App. 119 (1999);
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
There is no indication that there are additional pertinent
records that have not been obtained. The veteran has been
examined and afforded an opportunity to present evidence and
argument in support of his claim. Thus, no further
development is required in order to comply with VA's duty to
assist mandated by 38 U.S.C.A. § 5107(a).
The Board notes that words "slight," "moderate" and
"severe" as used in the various diagnostic codes are not
defined in the Schedule, and that regulations provide that
rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions
are "equitable and just." 38 C.F.R. § 4.6 (1999). It
should also be noted that use of terminology such as "mild"
by VA examiners and others, although an element of evidence
to be considered by the Board, is not dispositive of an
issue. All evidence must be evaluated in arriving at a
decision regarding the assignment of a rating percentage.
38 C.F.R. §§ 4.2, 4.6 (1999). The veteran is currently in
receipt of a 30 percent evaluation for the period November
30, 1994, to July 1, 1996. Diagnostic Code 9411, as extant
prior to November 6, 1996, provides for assignment of a
30 percent evaluation where there is "definite" impairment,
defined as "moderately large in degree" by VA's General
Counsel. See VAOPGCPREC 9-93.
The Board finds a rating in excess of 30 percent for PTSD is
not warranted for the period from November 30, 1994 to July
7, 1996. The Board notes at the time of the February 1995 VA
PTSD examination, the examiner found the veteran probably met
the criteria for PTSD in the past, but at the time of the
examination, he only had residuals of the disability.
Residuals of PTSD do not equate to considerable impairment in
social relationships or in industrial capacity.
Subsequent to the February 1995 VA examination, the pertinent
evidence consists primarily of clinical records from PTSD
counseling the veteran was receiving. The veteran
consistently complained of problems dealing with people. The
evidence reflects that he broke up with and returned to his
live in girl friend several times during the relevant period
of time. It was noted that the veteran eventually moved to
the mountains for a period of time, apparently in August
1995. However the evidence further shows that in November
1995, he was planning on attending a family reunion. In
January 1996, it was noted he was performing volunteer work
for the Disabled American Veterans and felt surprised he like
the work since he didn't like people. While in March 1996,
it was reported the veteran was isolated with the exception
of his girlfriend, in May 1996, his attendance at a PTSD in-
patient clinic was delayed due to the veteran's mother's
health. In June 1996, it was reported he was still
performing various projects for Disabled American Veterans.
The Board finds the above evidence shows the veteran
experienced impairment in the ability to establish and
maintain effective or favorable relationships but such
impairment did not rise to the level of considerable
impairment. The veteran maintained an off and on
relationship with his girlfriend. The relationship was
terminated in April but this termination was due to the
girlfriend's drinking. He also had contacts with his family
and was able to interact with people while performing
volunteer work.
The record further reflects evidence of industrial
impairment. The veteran reported on numerous occasions that
he had problems with his auto body shop as a result of
dealing with the public. In March 1996, it was noted he had
closed the body shop because he was unable to deal with the
stress of working with the public. However, a January 1996
clinical record shows the veteran was performing volunteer
work for Disabled American Veterans at that time and was
enjoying the work despite the fact he did not like people.
In June 1996, he was still working on various projects for
Disabled American Veterans. The Board finds that, while the
veteran closed his body shop reportedly as a result of
problems dealing with the public, he was still able and in
fact enjoyed working as a volunteer for Disabled American
Veterans. The Board interprets this evidence to demonstrate
that while the veteran quit working at his body shop, he was
still able to perform volunteer work which would not equate
to considerable industrial impairment. Additionally, there
is no evidence the veteran's industrial impairment was the
result of his PTSD. The Board notes the veteran was
diagnosed with a personality disorder at the time of the
February 1995 VA examination as well as with alcohol
dependence.
The Board's finding that a rating in excess of 30 percent is
not warranted for the period from November 30, 1994 to July
1, 1996 is reinforced by the April 1997 letter from the
social worker who had assisted in treating the veteran
beginning in November 1994. This social worker noted that
the veteran's PTSD symptoms notably increased after his in-
patient PTSD treatment which began in July 1996. The Board
finds the social worker's opinion persuasive as she had
participated extensively in the veteran's PTSD treatment for
the time period in question and her opinion was based on her
experiences and observations over that period of time.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for an
increased evaluation.
ORDER
Entitlement to a rating in excess of 30 percent from November
30, 1994 to July 1, 1996 is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals